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Irrigation Act

Cap. 347

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Irrigation Act
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LAWS OF KENYA

IRRIGATION ACT

CAP. 347

  • Published in Kenya Gazette Vol. CXXI—No. 105 on 16 August 2019
  • Assented to on 29 July 2019
  • Commenced on 16 August 2019
  1. [Amended by Irrigation (Amendment) Act, 2022 (Act No. 33 of 2022) on 26 July 2022]
  2. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]
An Act of Parliament to provide for the development, management and regulation of irrigation, to support sustainable food security and socioeconomic development in Kenya, and for connected purposes

Part I – PRELIMINARY

1. Short title

This Act may be cited as the Irrigation Act.

2. Interpretation

In this Act, unless the context otherwise requires—“agency contract” means a legal agreement creating a fiduciary relationship whereby the principal agrees that subsequent actions by the agent are binding as if the principal acted thereupon;"agriculture" has the meaning assigned to it under section 2 of the Agriculture and Food Authority Act (Cap. 317);"Authority" means the National Irrigation Authority established under section 7;"authorized" means authorized by or under this Act;"Board" means the Board of the Authority established under section 9;"Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to irrigation;"Chief Executive Officer" means the Chief Executive Officer of the Authority appointed under section 12;"commercial irrigation farmer" means a farmer who by means of irrigation grows crops primarily for sale;“Council of Governors” means the Council of County Governors established under the Intergovenmental Relations Act (Cap. 265F);"county irrigation development unit" means the unit or entity established by a county government to carry out irrigation matters under section 14;"Department" means the State Department responsible for matters relating to irrigation;"Dispute Resolution Committee" means the Dispute Resolution Committee established under section 8(2)(d);"farmer" includes a crop, livestock or fish farmer;“irrigators” means the persons or entities which own, operate or manage an irrigation scheme;"irrigation" means any hydraulic engineering driven process, which supplies water to crops or any other cultivated plants, livestock, aquaculture and desired forest tress;"irrigation scheme" means a systematic and orderly irrigation system covering a defined area of land regardless of the type or system of irrigation employed;"irrigation management transfer" means the transfer to the users of authority and responsibility for both governance and delivery of management services in an irrigation and drainage scheme;"irrigation service fee" means the rates to be charged to water users for receiving irrigation services;"irrigation service plan" means the annual plan for water acquisition and distribution, scheme maintenance and repairs, other management tasks, staff and group labour mobilization, budget and irrigation service fee;"irrigation water user" means a member of a water users' association who uses water from an irrigation scheme for an approved purpose such as for crops, livestock, and fish farming;"irrigation water users’ association" means any association established under section 20;"large scale irrigation scheme" means a scheme which acreage size covers over three thousand acres, and is developed and managed by the Authority, and is established for national strategic purposes, or such schemes as implemented by the private sector;"licence" means a licence issued by the Cabinet Secretary or such other person as the Cabinet Secretary may authorize;"medium scale irrigation scheme" means a scheme which in acreage size covers over one hundred acres to three thousand acres, and is implemented by the Authority, or another state agency in collaboration with county government, or such schemes as implemented by a private entity;"Ministry" means the Ministry for the time being responsible for matters related to irrigation;"monitoring and evaluation" means a system of measuring, reporting and interpreting the quantity and quality of inputs provided, actions implemented, immediate outcomes achieved and ultimate impacts realized;"national irrigation scheme" means an area of land designated as such by the Cabinet Secretary through a gazette notice;"Scheme Management Committee" means the Scheme Management Committee established under section 8(2)(c);"smallholder irrigation and drainage scheme" means an irrigation scheme that is developed, owned and managed by communities as irrigation water user groups or individual farmers;"small scale irrigation scheme" means a scheme which in acreage size covers less than one hundred acres and implemented by a county government, or by the national government through Authority in case of trans boundary or inter county schemes or strategic schemes or such schemes as implemented by a private entity;"storage" means infrastructure and practices designed to capture and store water for use in irrigation;“strategic irrigation scheme” means a national or a county scheme which serves a specific production purpose;“transboundary, trans-county or inter county irrigation scheme” means a scheme whose area of coverage lies across at least two administrative county boundaries;"Water Tribunal" means the Water Tribunal established under section 119 of the Water Act (Cap. 372);"water harvesting" means activities where water from rainfall or surface runoff is collected, diverted, stored and utilized; and"Water Resources Authority" has the meaning assigned to it under section 2 of the Water Act (Cap. 372).[Act No. 33 of 2022, s. 2.]

3. Scope of application

(1)The provisions of this Act shall apply to matters relating to the development, management, financing, provision of support services and regulation of the entire irrigation sector in Kenya.
(2)Upon the commencement of this Act, no irrigation development management and regulation may be carried out in Kenya otherwise than under this Act.[Act No. 33 of 2022, s. 3.]

4. Act to prevail in irrigation matters

The provisions of this Act shall prevail in case of any inconsistency between this Act and any other legislation in matters relating to irrigation.

5. Guiding principles

In discharging functions under this Act, the Cabinet Secretary, any State corporation established under this Act, county governments and any person or persons administering or applying this Act, shall be guided by the principles and values set out in Articles 10, 43, 60 and 232 of the Constitution.

Part II – DEVELOPMENT, MANAGEMENT AND REGULATION OF IRRIGATION

6. Role of national government

(1)The Cabinet Secretary shall develop, manage and regulate irrigation throughout Kenya and to this extent shall ensure the effective exercise and performance by any authority or person under the authority of the Cabinet Secretary of their powers and duties in relation to irrigation and drainage, including water harvesting and storage for irrigation.
(2)Without prejudice to the generality of the foregoing, the Cabinet Secretary shall have responsibility with regard to development management and regulation of irrigation to—
(a)formulate policies, make legislative proposals to Parliament, provide sector regulation, coordination and guidance, and monitoring and evaluation;
(b)develop general principles, guidelines and standards for promoting development and for the coordination of irrigation planning;
(c)establish, through a gazette notice, national, public or strategic schemes of any category as defined in this Act;
(d)promote the use of efficient irrigation systems across the country;
(e)subject to resource constraints, ensure availability and adequacy of water for irrigation;
(f)receive and determine applications for any irrigation projects, including issuance of irrigation licences for irrigation schemes;
(g)monitor and enforce conditions attached to licenses for all irrigation schemes;
(h)report to both Houses of Parliament annually, and from time to time as may be necessary, on the state of, and needs for, irrigation development management and regulation in the country;
(i)in collaboration with county governments, gather information and maintain data bases on irrigation development management and regulation including data on irrigation water supplies, demands, projects, irrigated areas, management performance, potential for expansion and human resources;
(j)conduct periodic technical and management audits of irrigation schemes infrastructure, governance, management and financing;
(k)maintain storage investments for their proper use implementation; and
(l)carry out other mandate as may be specified in this Act or any other written law.
(3)The Cabinet Secretary shall, in the performance of the functions under this section and in order to encourage broad support for irrigation development and management, consult and seek the co-operation of—
(a)other ministries and agencies of the National Government;
(b)the Council of County Governors;
(c)county governments; and
(d)non-government entities.
(4)The Cabinet Secretary shall, in consultation with the county governments and other stakeholders, formulate and publish in the Kenya Gazette, a five-year national irrigation services strategy, based on, among others, the national irrigation policy for the time being in force.
(5)The Cabinet Secretary shall ensure effective implementation of the national irrigation services strategy and to this end shall institute reviews aligned to planning cycles or at such times as the Cabinet Secretary may determine.
(6)The Cabinet Secretary may exercise any or some of the duties and functions under subsection (1) above directly or through the Authority.[Act No. 33 of 2022, s. 4.]

Part III – THE NATIONAL IRRIGATION AUTHORITY

7. Establishment of the Authority

(1)There is established an authority to be known as the National Irrigation Authority.
(2)The Authority shall be a body corporate with perpetual succession and a common seal, and shall, in its corporate name, be capable of—
(a)suing and being sued;
(b)taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;
(c)borrowing or lending money;
(d)entering into contracts; and
(e)doing such other acts necessary for the proper performance of the functions of the Authority.
(3)The headquarters of the Authority shall be in Nairobi.
(4)The Authority may establish such regional, county, catchments or sub-catchment or sub-county level offices as the Board, may consider necessary.

8. Powers and functions of the Authority

(1)The functions of the Authority shall be to—
(a)develop and improve irrigation infrastructure for national or public schemes;
(b)provide irrigation support services to private medium and smallholder schemes, in consultation and cooperation with county governments and other stakeholders;
(c)provide technical advisory services to irrigation schemes in design, construction supervision, administration, operation and maintenance under appropriate modalities, including agency contracts, as may be elaborated in regulations to this Act.
(2)The Authority shall exercise all such powers necessary to enable it to perform its functions under this Act and, without prejudice to the generality of the foregoing, the Authority may—
(a)undertake irrigation development, including infrastructure, in national or public and smallholder schemes, including schemes which traverse or straddle more than one county;
(b)in consultation with county governments, facilitate formation and strengthening of irrigation water users' associations at scheme level for operation, maintenance and management;
(c)in consultation with the county governments and other stakeholders facilitate formation and strengthening of scheme management committees at scheme level for management of the schemes;
(d)in consultation with the county governments and other stakeholders facilitate formation and strengthening of dispute resolution committees at scheme level for the resolution of disputes relating to scheme management;
(e)in consultation with the Cabinet Secretary, the Cabinet Secretary for the time being responsible for finance, and the county governments raise funds for the development of infrastructure in national, public and smallholder schemes under appropriate mechanisms, including under agency contracts;
(f)in consultation with the Cabinet Secretary and county governments, co-ordinate and plan settlement on national or public irrigation schemes, as well as schemes which traverse or straddle more than one county and determine the number of settlers thereof;
(g)provide technical advisory services on a commercial basis, on irrigation water management, including water harvesting and storage, and waste water recycling for agricultural use to all schemes under appropriate modalities, including agency contracts;
(h)in collaboration with county governments, the private sector, civil society organizations and other stakeholders, provide technical advisory services to community and smallholder irrigation schemes concerning design, construction supervision, administration and maintenance of irrigation infrastructure under appropriate modalities, including agency contracts;
(i)facilitate linkages between and among the National Government and county governments, private sector, civil society organizations, communities and other stakeholders for the provision of support services to irrigation water user associations;
(j)provide, manage, and administer land in national or public irrigation schemes as well as inter-county schemes for public use;
(k)in collaboration with county governments and other stakeholders, promote the marketing, safe storage and processing of crops, animal and fish products grown or produced on national and other irrigation schemes and to liaise in this regard with other responsible state agencies and organizations;
(l)in collaboration with county government and other stakeholders and government agencies carry out periodic researches to determine and make recommendation on fair prices for crops, animals and fish products grown or produced on national and other irrigation schemes;
(m)prepare and submit to the Cabinet Secretary, through the Principal Secretary, annual and other periodic reports concerning the performance of its mandate and functions; and
(n)advise the Cabinet Secretary, through the Principal Secretary, on any matter in connection with the development, maintenance, expansion and availability of irrigation support services.
[Act No. 33 of 2022, s. 5.]

9. The Board of Authority

(1)There shall be a Board of the Authority which shall consist of—
(a)a chairperson, who shall be appointed by the President subject to subsection (4);
(b)the Principal Secretary responsible for Irrigation or his representative;
(c)the Principal Secretary responsible for finance or his representative;
(d)the principal secretary responsible for Agriculture or his representative;
(e)the Principal Secretary for the time being responsible for water or his representative;
(f)two persons of opposite gender and from different regions, with knowledge and experience in matters relating to water, agriculture, irrigation or environmental studies, appointed by the Cabinet Secretary from a list of four nominees submitted by the Council of County Governors;
(g)one person with knowledge and experience in matters relating to civil engineering, economics, finance or rural development, appointed by the Cabinet Secretary from a list of three nominees submitted by a registered private sector membership organisation with a national outlook; and
(h)one person appointed by the Cabinet Secretary out of three persons nominated by the National Irrigation Farmers Associations;
(2)The members of the Board shall—
(a)reflect gender and regional balance in accordance with the Constitution; and
(b)be reflective of an appropriate professional, disciplinary and stakeholder mix.
(3)The Chief Executive Officer of the Authority shall be an ex officio member of the Board.
(4)A person shall be qualified for appointment as Chairperson of the Board if such a person—
(a)is a citizen of Kenya;
(b)meets the requirements of leadership and integrity set out in Chapter 6 of the Constitution; and
(c)holds relevant academic and professional qualification including a university degree in water engineering, civil engineering, agriculture, irrigation or environmental studies.
(5)The Board shall adhere to principles of corporate governance and may from time to time establish committees for the better carrying out of its functions.[Act No. 33 of 2022, s. 6.]

10. Conduct of business of the Board

The conduct of business of the Board shall be in accordance with the Schedule.

11. Powers of the Board

(1)The Board shall have all powers necessary for the proper performance of the functions of the Authority under this Act.
(2)Without prejudice to the generality of the foregoing the Board shall have power to—
(a)secure continuing improvement of performance, protect the long term viability, and ensure fiscal discipline of the Authority;
(b)administer the assets of the Authority in such manner as best promotes the purposes for which the Authority is established;
(c)ensure protection of the assets and developments of the Authority;
(d)determine the provisions to be made for capital and recurrent expenditure and for the reserves of the Authority;
(e)receive any grants, gifts, donations or endowment and make legitimate disbursements therefrom;
(f)invest any funds of the Authority not immediately required for its purposes;
(g)undertake any other activity necessary for the fulfilment of any of the functions of the Authority.
[Act No. 33 of 2022, s. 7.]

12. Chief Executive Officer

(1)There shall be a Chief Executive Officer of the Authority who shall be appointed by the Cabinet Secretary on recommendation of the Board on a competitive basis and on such terms and conditions as may be specified in the instrument of appointment.
(2)A person shall be qualified to be appointed as Chief Executive Officer of the Authority if that person—
(a)is a citizen of Kenya;
(b)meets the requirements of leadership and integrity set out in Chapter 6 of the Constitution;
(c)holds relevant academic and professional qualifications including a university degree in engineering or agriculture or any field related to irrigation; and
(d)has at least fifteen years' experience in the management of a public or private institution, five of which should be at senior management level, or is a distinguished scholar in a discipline relevant to irrigation.
(3)The Chief Executive Officer shall be responsible to the Board for the day-to-day management of the affairs of the Authority and for the performance of any other functions as the Board may direct, and shall be the accounting officer of the Authority.
(4)The Chief Executive Officer shall hold office for a term of three years and is eligible for re-appointment for a further term of three years.
(5)The Chief Executive Officer may be removed from office by the Cabinet Secretary on the recommendation of the Board in accordance with the terms and conditions of service.

13. Other staff

Subject to the provisions in section 35 regarding transitional arrangements, the Authority may engage such other officers and staff as it may consider sufficient for the performance of its functions under this Act on such terms and conditions as are provided in approved establishment.[Act No. 33 of 2022, s. 8.]

Part IV – RESPONSIBILITY OF COUNTY GOVERNMENTS

14. Role of county government

(1)Each county government may, within its area of jurisdiction, establish a county irrigation development unit for the better carrying out of its functions with respect to irrigation pursuant to Part 2 of the Fourth Schedule of the Constitution.
(2)Each county government shall, for purposes of ensuring uniformity and national standards in the irrigation sub-sector, through its legislative and administrative action, implement and act in accordance with the national policy guidelines issued by the Cabinet Secretary and approved by both Houses of Parliament.
(3)The county irrigation development units established under subsection (1) shall have the following functions—
(a)formulate and implement county irrigation strategy in collaboration with relevant stakeholders, in line with national policies and strategies;
(b)develop and maintain an irrigation database and integrate systematic monitoring and evaluation;
(c)identify community-based smallholder schemes for implementation in line with national guidelines;
(d)mainstream irrigation related statutory obligations such as those that relate to the environment, water and health;
(e)provide capacity building for farmers and support establishment of viable farmer organizations, and in particular irrigation water users associations to develop and manage irrigation schemes including actively participating in conflicts resolution within irrigation schemes;
(f)set up measures to implement adaptation and mitigation to climate change, and enhance sustainable environmental management.

Part V – IRRIGATION SERVICES

15. Water for irrigation

(1)The Cabinet Secretary shall, subject to water and other resource constraints, and in consultation with county governments, and other stakeholders ensure the adequacy and quality of water for irrigation purposes throughout the country.
(2)Pursuant to subsection (1), the Cabinet Secretary shall take measures to—
(a)in consultation with the Water Resources Authority, put in place appropriate water use fees structures and make arrangements with the Water Resources Authority in respect of requisition of irrigation water in bulk;
(b)seek advice of the Water Resources Authority on the development of new irrigation water sources, including water harvesting, flood control and storage for irrigation;
(c)approve appropriate arrangements on inter-catchment transfers of irrigation water in consultation with county governments and Water Resources Authority;
(d)develop a mechanism on return on investment formula resulting from construction of irrigation schemes using public funds; and
(e)develop guidelines on private sector involvement at various stages of the irrigation project implementation cycle.
[Act No. 33 of 2022, s. 9.]

16. Setting apart of land, access rights etc.

(1)The Cabinet Secretary may, in consultation with the National Lands Commission, the Board and county governments, and by notice in the Kenya Gazette, designate an area of land, for which an irrigation water permit may be issued by the Water Resources Authority and an irrigation license may be issued.
(2)In respect of land, other than public land, in a national or public irrigation scheme, the Cabinet Secretary shall, in accordance with the law for the time being relating to the compulsory acquisition of land, take such steps as may be necessary to acquire the right, title or interest in such land and to vest it in the Authority for the purposes of this Act.
(3)In the case of community land forming part of a national or public irrigation scheme, the Cabinet Secretary, on behalf of the Authority, may take the land on lease and on terms to be agreed between the Cabinet Secretary and the county government concerned.
(4)In default of agreement between the Cabinet Secretary and the county government as to the terms of a lease under subsection (3) of this section, the relevant provisions of the Land Act (Cap. 280), shall have effect.
(5)The Cabinet Secretary shall, in collaboration with county governments support and facilitate access rights to land for all irrigators on national irrigation schemes in order to provide livelihoods for poor and vulnerable persons and groups, and adequate security for investments in land improvement and the irrigation schemes.
(6)The Cabinet Secretary shall, in consultation with county governments, ensure that the design of national or public irrigation schemes and others, takes into account the needs of various irrigation water users, including livestock and fish producers and the impact the irrigation scheme is likely to have on the environment.[Act No. 33 of 2022, s. 10.]

17. Administrative and legal framework for water storage

(1)The Cabinet Secretary shall in consultation with the Water Resource Authority Secretary, the National Water Storage and Harvesting Authority, the National Land Commission, the Council of Governors and other stakeholders prescribe administrative and regulatory frameworks within existing laws and regulations on water storage existing and future irrigating requirements.
(2)Without prejudice to subsection (1), the Cabinet Secretary shall ensure that irrigation developments are planned and implemented—
(a)in accordance with Integrated Water Resources Management Principles;
(b)in accordance with agreements between irrigation water users and other stakeholders; and
(c)in such a manner as to reduce conflicts on water resources, protect the environment and public health and share water appropriately and equitably for multiple uses.
[Act No. 33 of 2022, s. 11.]

18. Irrigation research, innovation and training

(1)The Cabinet Secretary shall take legislative and administrative measures to ensure that irrigation research, innovation and training functions are carried out and appropriately co-ordinated.
(2)Each county government may identify priority irrigation research, innovation and training areas and participate in irrigation research, innovation and training processes, in collaboration with the national government.

19. Management of irrigation schemes

(1)The Cabinet Secretary shall, through the Authority, oversee management of existing and new national or public schemes, except those under county governments, and particularly storage dams, intake, main and secondary systems as necessary.
(2)The Cabinet Secretary, through the Authority, shall provide resources and direction for capacity building and technical services to irrigation water users associations, scheme management committees, dispute resolution committees and other farmer associations to enable them to progressively accept and assume full responsibility for management of national or public schemes under appropriate agency contracts with the National Government or county governments, as the case may be.
(3)Despite any agency contracts between the National Government or county governments and any irrigation water users' association, scheme management committees, dispute resolution committees under subsection (2), all assets of the national or public irrigation schemes shall remain vested in the national government or county government as appropriate, which shall also retain regulatory oversight over governance, management and financing of such schemes.
(4)The Cabinet Secretary shall, through the Authority and in collaboration with county governments and relevant stakeholders provide support, subject to availability of resources, and direction for capacity building and technical advisory services to irrigation water users' associations, scheme management committees, dispute resolution committees and other farmer associations to enable them to take over governance and management responsibility for smallholder schemes as soon as possible after they are developed.

20. Formation of irrigation water users’ associations

(1)A resident of a catchment area who is a crop farmer, livestock producer, fish pond user, or small rural industry entrepreneur or otherwise uses water for irrigation purposes from a common water source may, together with other members or persons resident in the same area, form or join an irrigation water users' association.
(2)Where an association pre-exists an irrigation scheme, the said association may be recognized as the bona fide association to operate and maintain a scheme established in the association's area of coverage, and more than one association may operate and maintain a scheme on appropriate and mutually agreed terms.
(3)An association may, with the approval of the Cabinet Secretary, enter into an agreement with the National Government, a county government, a private sector institution or another farmers' association for the establishment, expansion, implementation, improvement, modernisation, operation or maintenance of a scheme subject to mandatory approvals in accordance with regulations.
(4)Despite sub-section (3), an association may enter into cost-sharing agreements with the National Government, county governments, private sector institutions or other farmers' associations for implementing improvements, modernization, establishment or expansion of a scheme, subject to approval by the Cabinet Secretary and concurrence of the National Treasury.
(5)The Cabinet Secretary, in consultation with county governments, may make rules for the establishment and governance of irrigation water users' associations under this section.[Act No. 33 of 2022, s. 12.]

Part VI – FINANCIAL PROVISIONS

21. Finances of the Authority

The funds and assets of the Authority shall consist of—
(a)such monies as may be appropriated by the National Assembly for the purposes of the Authority;
(b)any monies or property which may in any manner accrue or vest in the Authority in the course of the exercise of its functions under this Act;
(c)such monies as may become payable to the Authority by way of fees in respect of services rendered by or through the Board; and
(d)all monies from any other sources provided, donated or lent to the Authority.

22. Annual estimates

(1)At least five months before the commencement of each financial year, the Authority shall cause to be prepared estimates of the revenue and expenditure of the Authority for that year.
(2)The annual estimates shall make provision for all the estimated expenditure of the Authority for the financial year concerned and in particular shall provide for—
(a)the payment of salaries, allowances and other charges in respect of the staff of the Authority and the Board of the Authority as the case may be;
(b)the payment of pensions, gratuities and other charges in respect of retirement benefits which are payable out of the funds of the Authority;
(c)the acquisition, maintenance, repair and replacement of the equipment and other movable property of the Authority;
(d)the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance and the replacement of buildings or equipment, or in respect of such other matters as the Board may deem fit;
(e)estimated expenditure for development of infrastructure for the development of irrigation; and
(f)estimated expenditure for the provision of irrigation services and advisory support.
(3)The annual estimates shall be approved by the Board at least two months before the commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary.
(4)No expenditure shall be incurred for the purposes of the Authority except in accordance with the annual estimates approved under subsection (3) or in pursuance of an authorization of the Board given with prior written approval of the Cabinet Secretary and the Cabinet Secretary to the National Treasury.[Act No. 33 of 2022, s. 13.]

23. Accounts and Audit

The Board shall ensure that proper books of account of the income, expenditure, assets and liabilities of the Authority are kept, and shall in this regard be subject to the provisions of the State Corporations Act (Cap. 446).

24. Annual reports

(1)The Board shall, within a period of seven months after the end of each financial year, or within such longer period as the Cabinet Secretary may approve, submit to the Cabinet Secretary a report on the operations of the Authority during that year, and the auditor's report, together with the yearly balance sheet and such other statements of account as the Cabinet Secretary shall require, and the Board shall publish them in such manner as the Cabinet Secretary may specify.
(2)A copy of every auditor's report, balance sheet and other statements of accounts submitted in accordance with subsection (1) shall be sent by the Authority to the Auditor- General, who may at any time examine the accounts, and the Auditor-General shall be entitled to require from the Authority and its auditors such further information and explanation as he may consider necessary.
(3)The financial reports of the Authority with the yearly balance sheet and such other statements of account as the Cabinet Secretary may deem appropriate, together with the auditor's report and any report made by the Auditor-General, shall be submitted through the Principal Secretary and the same shall be laid by the Cabinet Secretary before Parliament as soon as possible after it has been submitted to the Cabinet Secretary and shall constitute an integral part of the Cabinet Secretary's report required under this section.

Part VII – DISPUTE RESOLUTION

25. Dispute resolution

(1)Disputes related to irrigation and drainage scheme development, management, water allocations and delivery, financing, operation and maintenance and other matters shall be resolved within the irrigation water users association or at irrigation scheme level wherever possible.
(2)Each association which is legally registered shall have a Dispute Resolution Committee that consists of at least three members selected by its governing body.
(3)Decisions regarding any dispute contemplated under this section shall be made by the relevant Dispute Resolution Committee within thirty days of the hearing of the dispute in question.

26. Appeals

Where the water users association or at the irrigation scheme level is unable to resolve a dispute, the same shall be referred to the Dispute Resolution Committee at the first instance to consider and determine the matter before the same is referred to Court.

Part VIII – MISCELLANEOUS AND OFFENCES PROVISIONS

27. Monitoring and evaluation

The Cabinet Secretary shall, in consultation with the county governments—
(a)develop and implement a monitoring and evaluation system for the development, governance, management, regulation, provision and financing of irri gation at all levels, including assessment of inputs, outputs immediate outcomes and ultimate impacts based on the results; and
(b)conduct periodic irrigation management and performance audits in strategically important schemes, and may assess the financial management and quality of governance obtaining in the schemes.
[Act No. 33 of 2022, s. 14.]

28. Protection from liability

No liability shall attach to the Authority or its Board or its members, officers, agents or servants for any loss or damage sustained by any person as a result of any act or omission done or omitted to be done in good faith and without negligence in the performance or exercise of any duty or power imposed or conferred by or under this Act.

29. Wilful damage

Any person who wilfully damages an irrigation infrastructure, water course, equipment or other appliances, or steals or otherwise unlawfully tampers or interferes with such infrastructure, watercourse, equipment, or other appliance, commits an offence and shall be liable upon conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding 24 months or to both such fine and imprisonment.

30. Destructive practices

Any person who—
(a)engages in activities or practices which are destructive or potentially destructive to the catchment areas of a river or public water body supplying water to an irrigation scheme; or
(b)permits or causes animals to damage irrigation areas or infrastructure,
that person commits an offence and shall be liable upon conviction to a fine of not more than five hundred thousand shillings or to imprisonment for a term not exceeding 12 months or to both such fine and imprisonment.

31. Setting fire

Any person who—
(a)sets or causes to be set on fire on an irrigation scheme or on any irrigated or drained farm, garden or plot; or
(b)being a person with responsibility over any aspect of an irrigation scheme, without reasonable excuse or cause, refuses to assist in averting, fighting or extinguishing a fire on an irrigation and or drainage scheme or on any irrigated and or drained farm, garden or plot,
that person commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both such fine and imprisonment.

32. Harmful chemicals

Any person who applies or causes to be applied on an irrigation scheme, farm, garden or plot under irrigation any chemicals or substances prohibited under this Act or any other law for the time being in force, commits an offence and shall be liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term of five years or to both such fine and imprisonment.

33. Abstraction of water

Any person who abstracts water from an irrigation system or disrupts the distribution plan of a scheme commits an offence and shall be liable on conviction to a fine not exceeding two hundred and fifty thousand shillings or to imprisonment for a term of one year or to both such fine and imprisonment.

Part IX – PROVISIONS ON DELEGATED POWERS

34. Making of Regulations

(1)The Cabinet Secretary may, in consultation with county governments, make Regulations, for the better carrying out of the purposes and provisions of this Act.
(2)The regulations made under this section shall be approved by both Houses of Parliament.
(3)Without prejudice to the generality of the foregoing, Regulations made under this section may provide for—
(a)the management of national, public and other irrigation schemes;
(b)the standards of good on-farm water management;
(c)the regulation of, and tariffs payable for, the use of water on national, public and other irrigation schemes;
(d)the control of persons occupying any land comprising or forming part of a national irrigation scheme, the introduction of or the control of settlers on such land, the issue by the Authority as the case may be, of licenses or permits or leases to such persons or settlers, the revocation of such licenses and leases, and the terms and conditions which may be attached to such licenses and leases;
(e)the requirements, procedures and forms for licensing of irrigation schemes;
(f)the establishment, operations and governance of irrigation water users' associations, scheme management committees and dispute resolution committees;
(g)prescribe fees payable by irrigation water users based on costs of operation and maintenance of the scheme;
(h)monitoring and evaluation and audits required under the Act;
(i)adherence to environmental and public health matters;
(j)development of irrigation including infrastructure, frameworks, complementary installations, water harvesting, storage, distribution and licensing; and
(k)multi-government agencies consultation collaboration, cooperation and accountability in the implementation of this Act.
(4)Any Regulations made under this section may—
(a)require acts to be performed to the satisfaction of a prescribed authority, may prohibit their performance without the prior approval of a specified authority, and may empower a specified authority to impose conditions for the performance of specific acts;
(b)be made to apply generally to all irrigation schemes or to any specified irrigation or to any specified area or areas thereof;
(c)provide for such penalty for the breach of any provision thereof, not exceeding a fine of fifty thousand shillings and or imprisonment for one year, as the Cabinet Secretary may regulate from time to time.
(5)The Cabinet Secretary shall publish the regulations required under this Act in the Gazette within eighteen months of the enactment of this Act or as otherwise determined upon consultation with stakeholders.[Act No. 33 of 2022, s. 15.]

Part X – REPEALS AND TRANSITIONAL PROVISIONS

35. Repeal of Irrigation Act, No. 13 of 1966

(1)The Irrigation Act (No. 13 of 1966) is repealed.
(2)Notwithstanding subsection (1) and upon commencement of this Act—
(a)all the funds, assets and other property, both movable and immovable which were vested in the National Irrigation Board shall, by virtue of this paragraph, vest in the Authority;
(b)all rights, powers and liabilities which were vested in, imposed on or enforceable against the National Irrigation Board shall, by virtue of this paragraph, be vested in, imposed on or enforceable against the Authority;
(c)any reference in any written law or in any document or instrument to the National Irrigation Board shall be construed to be a reference to the Authority;
(d)the annual estimates of the National Irrigation Board for the current financial year shall be deemed to be the annual estimates of the Authority for the remainder of that financial year:
Provided that such estimates may be varied by the Authority in such manner as the Cabinet Secretary may approve.
(e)the administrative directions made by the National Irrigation Board or by the Cabinet Secretary which were in force before the commencement of this Act shall have force as if they were directions made by the Authority or the Cabinet Secretary under this Act;
(f)any person who, immediately before the commencement of this Act, was an officer, agent, or member of staff appointed, seconded or deployed or otherwise employed by the National Irrigation Board shall become an employee or otherwise seconded or deployed to the Authority on similar terms and conditions of service or as may be provided by the law.

SCHEDULE [s. 10]

PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE BOARD

[Act No. 33 of 2022, s. 16.]
1.Tenure of officeThe Chairperson or a member of the Board other than an ex officio member shall, subject to the provisions of this Schedule, hold office for a period of three years, on such terms and conditions as may be specified in the instrument of appointment, but shall be eligible for re-appointment for a further period of three years.
2.Vacation of officeThe Chairperson or a member other than an ex officio member may—
(a)at any time resign from office by notice in writing to the Cabinet Secretary;
(b)be removed from office by the Cabinet Secretary on the recommendation of the Board if the member—
(i)has been absent from three consecutive meetings of the Board without the permission of the Board;
(ii)is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings;
(iii)is incapacitated by prolonged physical or mental illness; or
(iv)is otherwise unable or unfit to discharge his functions.
(c)be removed from office by the Cabinet Secretary if the member —
(i)contravenes the provisions of Chapter six of the Constitution; or
(ii)acts in contravention of codes, policies and procedures in the public service.
3.Meetings
(1)The Board shall meet not less than four times in every financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting.
(2)Despite the provisions of subparagraph (1), the Chairperson may, and upon requisition in writing by at least five members, convene a special meeting of the Board at any time for the transaction of the business of the Board.
(3)Unless three quarters of the total members of the Board otherwise agree, at least fourteen days written notice of every meeting of the Board shall be given to every member of the Board.
(4)The quorum for the conduct of the business of the Board shall be five members including the Chairperson or the person presiding.
(5)The chairperson shall preside at every meeting of the Board of and in the absence of the chairperson, a member of the Board elected by the members present from among their numbers shall preside.
(6)Unless a unanimous decision is reached, a decision on any matter before the Board shall be by a majority of the votes of the members present and voting and in the case of an equality of votes, the Chairperson or the person presiding shall have a second or casting vote.
(7)Subject to paragraph (4), no proceedings of the Board shall be invalid by reason only of a vacancy among the members thereof.
(8)Subject to the provisions of this Schedule, the Board may determine its own procedure and the procedure for any committee of the Board and for the attendance of other persons at its meetings and may make standing orders in respect thereof.
4.Disclosure of interest
(1)If a member is directly or indirectly interested in any contract, proposed contract or other matter before the Board and is present at a meeting of the Board at which contract, proposed contract or other matter is the subject of consideration, he or she shall, at the meeting and as soon as reasonably practicable after the commencement thereof, disclose the fact and shall not take part in the consideration or discussion of, or vote on, any questions with respect to the contract or other matter, or be counted in the quorum of the meeting during consideration of the matter.
(2)A disclosure of interest made under this paragraph shall be recorded in the minutes of the meeting at which it is made.
5.Common sealThe affixing of the Common seal of the Authority shall be authenticated by the signature of the Chairperson and the Chief Executive Officer and any document not required by law to be made under seal and all decisions of the Board may be authenticated by the signatures of the Chairperson and the Chief Executive Officer:Provided that the Board shall, in the absence of either the Chairperson or the Chief Executive Officer in any particular matter, nominate one member to authenticate the seal on behalf of either the Chairperson or the Chief Executive Officer.
6.Contracts and instrumentsAny contract or instrument which, if entered into or executed by a person not being a body corporate, would not require to be under seal, may be entered into or executed on behalf of the Board by any person generally or specially authorized by the Board for that purpose.
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History of this document

31 December 2022 this version
26 July 2022
Read this version
16 August 2019
Commenced
Read this version
29 July 2019
Assented to

Cited documents 5

Act 5
1. Land Act 3862 citations
2. Water Act 276 citations
3. State Corporations Act 174 citations
4. Intergovernmental Relations Act 121 citations
5. Agriculture and Food Authority Act 53 citations

Documents citing this one 25

Judgment 15
1. Endebess Development Company Limited v Coast Development Authority; National Bank of Kenya (Garnishee) (Civil Case 11 of 2017) [2024] KEHC 2945 (KLR) (14 March 2024) (Ruling)
2. In re Estate of Mugo Wangai (Deceased) (Civil Appeal 18 of 2017) [2023] KEHC 26426 (KLR) (4 December 2023) (Judgment)
3. Kabunga v Kabunga & another (Civil Appeal E032 of 2021) [2023] KEHC 24189 (KLR) (26 October 2023) (Judgment)
4. Kiirua Buuri Water Project (Suing Through Its Secretary – John Kimathi M’tuerandu ) v Deputy County Commissioner Buuri East & 4 others (Petition E008 of 2023) [2023] KEHC 25785 (KLR) (28 November 2023) (Judgment)
5. Kingari & 3 others v Munene (Environment and Land Appeal 1 of 2022) [2024] KEELC 838 (KLR) (22 February 2024) (Judgment) Interpreted
6. Mukoma & another v Ngunu & another (Environment and Land Appeal E034 of 2022) [2025] KEELC 1428 (KLR) (20 March 2025) (Judgment)
7. Muriithi & 2 others v Muthike & 2 others (Environment & Land Case 21 of 2019) [2024] KEELC 6587 (KLR) (9 October 2024) (Judgment) Cited
8. Muriithi & 2 others v Muthike & 2 others (Environment and Land Appeal 21 of 2019) [2023] KEELC 18103 (KLR) (21 June 2023) (Ruling) Cited
9. Njoroge v Mwea Irrigation Scheme Manager & another (Environment and Land Judicial Review Case E003 of 2024) [2025] KEELC 1419 (KLR) (20 March 2025) (Judgment)
10. Ojwang v National Irrigation Authority & another (Environment & Land Case E010 of 2022) [2025] KEELC 217 (KLR) (24 January 2025) (Judgment)
Gazette 7
1. Kenya Gazette Vol. CXXV-No. 168 1 citation
2. Kenya Gazette Vol. CXXII-No. 160
3. Kenya Gazette Vol. CXXII-No. 9
4. Kenya Gazette Vol. CXXIV-No. 96
5. Kenya Gazette Vol. CXXV-No. 116
6. Kenya Gazette Vol. CXXV-No. 122
7. Kenya Gazette Vol. CXXV-No. 49
Act 1
1. Tana and Athi Rivers Development Authority Act
Bench Bulletin 1
1. Bench Bulletin - Issue 58
Bill 1
1. The Irrigation (Amendment) Bill, 2021

Subsidiary legislation

Title
Irrigation (General) Regulations Legal Notice 199 of 2021